Tuesday, January 25, 2011

Military Families Seek Injunction Against Department of Defense Over Therapy Denied to Children With Autism

/PRNewswire/ -- Military families have filed a motion for an injunction to mandate that the Defense Department's insurer, TRICARE, cover medically necessary care needed by military families' children with autism. The motion seeks a mandate that TRICARE cover the cost of Applied Behavior Analysis therapy, or ABA, which is effective in treating children with autism spectrum disorder.

According to the military families, without ABA therapy at an early age, children with autism will suffer irreparable harm. The motion alleges that numerous studies and medical professionals confirm the effectiveness of ABA therapy, yet the Defense Department continues to reject military families' claims for the therapy, relying on shifting rationales.

The case is entitled Berge v. United States of America, et al., No.10-cv-00373-RBW (D.DC), assigned to Judge Reggie B. Walton.

The military families allege that for approximately 10 years the Defense Department and TRICARE have avoided paying for ABA therapy by incorrectly claiming it was "special education" and therefore not payable under the military insurance program. After the military families demonstrated in their written arguments that the Defense Department's position was incorrect, the Defense Department shifted and began claiming that ABA therapy is not proven to be "medically or psychologically necessary."

At a hearing before Judge Walton on November 15, 2010, Department of Justice lawyer, Adam Kirschner conceded: "Special education was not the basis of" our denial of the therapy. Thus, after a decade of taking the position that ABA was "special education," the Defense Department has now abandoned that position and has contrived a new, equally erroneous, reason to not pay for the care.

Former Michigan State Senator, David Honigman, an attorney for the families, emphasized: "The Defense Department's shifting rationales for denying this therapy exposes the hollowness of its position. Time is of the essence for these children. Studies on ABA therapy emphasize that there is a small window of opportunity for these children to obtain maximum benefit from this therapy. If left to its own devices, the Defense Department would continue to keep this window of opportunity closed to these children."

Gerard Mantese, another attorney for the families, stated: "The Defense Department and the Department of Justice should do their homework and read the studies and reports, including the Defense Department's own internal documents, showing that ABA is the most effective therapy for treating autism. It is a slap in the face to these military families to deny therapy needed by their children, while these families are risking their lives for our country." In September 2010, Mr. Mantese was awarded the State Bar of Michigan's Champion of Justice Award for his work in taking legal steps to assist children with autism to access coverage for ABA therapy.